Wife Entitled To Retroactive Support From Deceased Husband’s Estate

by familyllb on July 19, 2012

Wife Entitled To Retroactive Support From Deceased Husband’s Estate

In a post last week, I discussed the legal principle that – unless a separation agreement or Divorce Order provides otherwise – spousal support payments end the moment the paying spouse dies. However, it’s important to know that retroactive support obligations are not automatically wiped off the deceased spouse’s slate as well.

This is illustrated in an Ontario decision called C v. C Estate.[name abbreviated at family member’s request] The husband and wife had no children together, but the husband acted in a legal parental capacity towards the wife’s daughter from another relationship, and had committed to supporting that child. The husband also had four children from various other relationships.

When they separated in 1997, it came as a total surprise to the wife: the husband simply left one day without warning, taking three-quarters of the household furniture with him (including the drapes, a chandelier, and a watch that the wife’s mother had given her). The wife had no idea that the marriage was in trouble. After this sudden separation, she continued to live in the matrimonial home for another eight months but could not keep up the mortgage payments, so the home was sold under a power of sale.

Against this background, and as part of a family law application she started in 1998, the wife claimed spousal support for herself and child support for the daughter.

However, the husband died in 2000, so the wife’s legal claims continued against his Estate. On the date of his death, the wife’s support claims were still outstanding. The wife accordingly claimed from the husband’s Estate for both retroactive child support and retroactive spousal support, and brought the matter to court for a hearing.

The court began its judgment with the following paragraph:

1 Michael C[…] (“Michael”) was a master of deceit. He deceived not only his wife, Marva …, he also deceived … his lawyer (later his Estate Trustee), his former wife Daphne … his children Dale …., Christopher …, Tameca … Jennifer … (a child from another relationship), step-daughter, Triciann …, his girlfriend Angela … and his clients, for whom he did insurance work and to whom he gave financial planning and investment advice. Finally, he deceived Revenue Canada (now “CRA”).

After reviewing the facts in detail, the court concluded that from the date of separation to the date of his death, the husband never told the truth about his income whether to the wife, his own lawyer or otherwise, and that the wife’s version of the facts (as she had pieced them together) were all true. Specifically – and even though he had professed the contrary while alive – the husband had indeed continued to work after the 1997 separation date, and in fact had substantial assets. Based on all the facts, the court imputed an income of $80,000 to the husband for each of the years 1997-2000.

Next, the court concluded that with the help of his children from previous relationships and his new girlfriend (all of whom who had participated in various mortgage schemes and financing schemes designed to obscure the husband’s true interests in the money / property), the husband had attempted to defeat the wife’s valid legal claim by hiding his assets from her. Moreover, the court found that large sums of money had been illegally or improperly taken by various people after the husband’s death.

Finally (and perhaps not surprisingly), at the date of his death the husband had not made proper support for the wife either by Will, or under a separation agreement. The wife’s spousal and child support claims remained open; she became a creditor of the husband’s Estate.

This being the case, the court found that the wife was entitled to receive retroactive child support of $20,000 and retroactive spousal support of more than $100,000, payable from the husband’s Estate. It also imposed a constructive trust in favour of the wife in connection with various the husband’s fraudulent transfer of three properties that were designed to defeat the wife’s entitlement. Finally – after some difficulty in piecing together the true information about the husband’s Net Family property figures – the court made an order for Equalization of $140,000 payable by the husband’s Estate as well.

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.

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FamilyLLB is written by Russell Alexander, a divorce and family law lawyer based in Ontario, Canada. For nearly twenty years, Russell's firm has helped clients who are going through a separation or divorce. You can find more of Russell's online commentary via Twitter, Google+, LinkedIn, or on the firm's Facebook page.